People v. Terra CA1/1 ( 2015 )

Filed 12/9/15 P. v. Terra CA1/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A145039
v.
JOSE ANTONY TERRA, (Alameda County
Super. Ct. No. H55589)
Defendant and Appellant.
Defendant Jose Antony Terra appeals from a judgment entered after his plea of no
contest to a charge of kidnapping. His counsel has raised no issues and asks this court for
an independent review of the record to determine whether there are any issues that would,
if resolved favorably to defendant, result in reversal or modification of the judgment.
(People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith
v. Robbins (2000) 528 U.S. 259.) Counsel notified defendant that he may file a
supplemental brief with the court, but defendant did not submit his own brief. Upon
independent review of the record, we conclude no arguable issues are presented for
review and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Charges
Defendant was charged with stalking (Pen. Code, § 646.9, subd. (a)), kidnapping
(Pen. Code, § 207, subd. (a)), making a criminal threat (Pen. Code, § 422), corporal
injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)), two counts of witness tampering (Pen. Code,
§ 136.1, subd. (a)(2)), and six counts of disobeying a court order (Pen. Code, § 166,
subd. (c)(1)). In addition, the information alleged use of a deadly weapon in connection
with four of the charges (Pen. Code, § 12022, subd. (b)(1)) and infliction of serious injury
on a domestic partner in connection with two counts, including the charge of kidnapping
(Pen. Code, § 12022.7, subd. (e)).
Facts
According to the probation report, early on the morning of May 9, 2013, a
Livermore police officer observed a pickup truck come to a sudden stop and pulled up
behind it. A woman left the passenger door and ran 15 to 20 feet away. She was bloody,
and her hair was disheveled. Defendant left through the driver’s side door and was
ordered to the ground and handcuffed. He was found to be carrying a knife.
During a later interview, the victim told police she was romantically involved with
defendant. In a jealous rage the prior evening, defendant forced her into his truck and
drove her around for six hours. He told her he would kill her with a knife if she tried to
leave the truck, made other threats, and repeatedly slapped her and held the knife against
her. After his arrest, defendant attempted to contact the victim from jail, in violation of
an emergency protective order.
Verdict and Sentence
Defendant pleaded no contest to one count of kidnapping and admitted the
allegation he inflicted great bodily injury on a domestic partner. The remaining charges
were dismissed. He was sentenced to seven years in prison under the terms of the plea
agreement.
Trial Court Ruling
Prior to sentencing, defendant filed a motion to withdraw his plea on the ground of
conflict of interest of his attorney, who had been permitted to withdraw soon after the
plea hearing. The plea withdrawal motion was accompanied by a declaration from the
victim, who stated she had retained defendant’s attorney. Without defendant’s
knowledge, she said, she told the attorney she wanted a quick resolution of the case
because she did not want to testify against defendant. The attorney agreed to pursue a
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plea bargain if he was retained. The victim hired the attorney without consulting
defendant and arranged for defendant’s father to sign the retainer agreement. Defendant
also filed a declaration, stating he was unaware the victim had retained his attorney and
would not have agreed to the representation had he known. According to defendant, the
attorney refused to meet with him or prepare the case, insisting defendant agree to a plea
bargain. Defendant unwillingly agreed.
At the hearing on the motion, the victim repeated the account provided in her
declaration. During cross-examination, she acknowledged she had married defendant
during his detention, around the time defendant retained a new attorney. Her testimony
was impeached with recordings of jail conversations between her and defendant, in which
he appeared to encourage her to participate in a scheme to falsify the grounds for his
motion to withdraw his plea. The trial court denied the motion, noting the victim’s
testimony “has seriously been impeached by the jail calls. And at one point, she stated
she never even met [defendant’s first attorney].”
DISCUSSION
Having independently reviewed the entire record, we find no arguable issue that
would result in a disposition more favorable to defendant, and there are no issues
requiring further briefing. We found no error in the conduct of defendant’s plea hearing,
there was a clear factual basis to support his no contest plea, and the court’s sentence was
consistent with the plea agreement. There was no error in the denial of defendant’s
motion to withdraw his plea. The trial court’s conclusion that the testimony of defendant
and the victim was not credible was supported by substantial evidence. (People v.
Breslin (2012) 205 Cal.App.4th 1409, 1415–1416 [denial of motion to withdraw plea
affirmed if factual findings are supported by substantial evidence].)
DISPOSITION
The judgment is affirmed.
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_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Banke, J.
A145039
People v. Terra
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